Gaitanis v Programmed Integrated Workforce Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gaitanis v Programmed Integrated Workforce Limited [2023] NSWPIC 500
APPLICANT:	Constantinos Gaitanis
RESPONDENT:	Programmed Integrated Workforce Limited
MEMBER:	John Isaksen
DATE OF DECISION:	26 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment of the lumbar spine and cervical spine; respondent accepts that the worker sustained injury to the lumbar spine but not to his cervical spine; reference to Kennedy Cleaning Services Pty Ltd v Petkoska and North Coast Area Health Service v Felstead; Held – worker sustained an injury to his cervical spine in the course of his employment with the respondent; referral to a Medical Assessor for assessment of permanent impairment of the lumbar spine and cervical spine.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his cervical spine in the course of his employment with the respondent on or about 10 December 2018. The Commission orders: 2. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 10 December 2018. Body Parts: lumbar spine and cervical spine. Method of Assessment: whole person impairment. 3. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments; (c) Application to Admit Late Documents filed by the respondent on 7 September 2023, and (d) A copy of this decision.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Constantinos Gaitanis, claims that he sustained an injury to lower back and neck on 10 December 2018 while employed as a labourer for the respondent, Programmed Integrated Workforce Limited.
The respondent concedes that the applicant sustained an injury to his lumbar spine, but disputes that the applicant sustained an injury to his cervical spine.
The applicant underwent a L5/S1 discectomy performed by A/Prof Sheridan on 14 May 2021.
The applicant has made a claim for a lump sum payment of compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 18% whole person impairment (WPI), which is based upon an assessment made by Dr Gothelf of 14% WPI of the lumbar spine and 5% WPI of the cervical spine.
The respondent maintains its decision that the applicant did not sustain an injury to his cervical spine on 10 December 2018.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained an injury to his cervical spine in the course of his employment with the respondent on 10 December 2018.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 21 September 2023. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Collins appeared for the applicant. Mr Rickard appeared for the respondent, instructed by Mr Lee.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the Application to Resolve a Dipsute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the respondent on
7 September 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

The applicant’s evidence

The applicant has provided statements dated 28 March 2019 and 21 September 2022.
In his statement dated 28 March 2019, the applicant states that he was employed by the respondent, but that he worked at the direction of Veridian Glass.
The applicant states that on 10 December 2018 he was unloading a glass panel, which he estimates to have weighed 100kg, from a truck with a work colleague. He states that he took the brunt of the load when his colleague almost dropped the panel.
The applicant states that he felt an immediate sharp pain in his lower back and his neck. He states that he reported the incident to his supervisor and that the incident was documented by his doctor, Dr Touma. He states that he took one day off work and returned to work a day later.
The applicant states that on 14 February 2019 he was manoeuvring a heavy trolley when the trolley veered off in the wrong direction and the applicant twisted his back in time to control the trolley, and a felt sharp pain in his lower back. He states that he received a text message not to return to work for Veridian Glass after this incident.
The applicant states that he continues to suffer severe pain in his neck, lower back and lower leg.
The applicant confirms in his statement dated 21 September 2022 that he injured his neck and back on 10 December 2018.

The medical evidence

The clinical notes from Dr Touma are in evidence. The entry made on 11 December 2018, being the day after the work injury, includes:
“left lower back pain
Started on Friday while lifting glass at work
Was doing repetitive lifting
Pain radiating to the buttock
And up mid back left side”
The next relevant entry on 29 January 2019 includes: “ongoing back pain” and a request by the applicant for Endone.
The next entry on 14 February 2019 is recorded as being for back pain and depression. There is no mention of the incident on that same day at work when the applicant claims he felt further pain in his back when manoeuvring a trolley.
There are some 15 entries made by Dr Touma between 10 December 2018 and
29 March 2019 (being the day after the applicant signed a statement stating that he sustained an injury to his neck on 10 December 2018) which record ongoing back pain, but no reference to any pain or symptoms in or from the neck. There are also three entries made by Mr Rossi, physiotherapist, over the same period which do not include any reference to treatment of the neck.
Counsel for both parties agreed that the first mention of neck pain in the notes from
Dr Touma is on 30 July 2019, wherein it is recorded: “ongoing neck pain” and “lower back pain”.
The applicant has another four consultations with Dr Touma or Dr Das for ongoing back pain until there is the next reference to the neck on 25 September 2019 of: “feeling stiff more in neck”.
The next entry made by Dr Touma in regard to the applicant’s neck is on 16 December 2019: “ongoing neck pain”.
Dr Touma records on 23 March 2020 that the applicant was hit by a car while he was on his bike the previous day and that the applicant was hit on the left hip/leg and left shoulder and “back pain got worse”. There is no mention of the neck in that entry, but Dr Touma records “ongoing neck and lower back pain” as well as pain in the left shoulder and left arm on
2 April 2020.
Dr Touma records on 12 May 2020:
“MVA
left shoulder pain affecting him
lower back pain left side
ONGOING NECK PAIN; radiating left arm”
Certificates of capacity were issued by Dr Touma throughout 2019 which stated that the diagnosis of injury was lower back pain for an injury sustained on 11 December 2018.
Dr Touma issues two separate Certificates of Capacity on 13 May 2020:
(a) a Certificate for “lower back pain; L5/S1 annular fissure, L3,4/L4,5 disc bulging, adjustment disorder” for an injury sustained on 11 December 2018, and
(b) a Certificate for “NECK PAIN, LOWER BACK PAIN, LEFT HIP/ARM/SHOULDER PAIN” for an injury sustained on 21 March 2020.
There are then many references to neck pain in the clinical notes from Dr Touma from
May 2020 onwards.
Dr Antoun, injury management consultant, provided a report at the request of the respondent dated 15 August 2019.
Dr Antoun records that the applicant was a poor historian. He records that the injury the applicant sustained when moving a large sheet of glass weighing approximately 110kg occurred on 28 February 2019 and records the further incident involving the heavy trolley at a later date. Dr Antoun records that the applicant sustained injury to his lower back in both those incidents but does not record any injury to the neck.
Dr Antoun records that the applicant experiences pain “from his Achilles tendon all the way up to behind his ears, on the left side”.
Dr Antoun records an examination of the applicant’s cervical spine, upper extremities, thoracic and lumbosacral spine and lower extremities. Dr Antoun records the applicant having limited range of motion of the cervical spine and that the applicant complained of discomfort on palpation of the left cervical muscles. He also writes that there were inconsistencies with the observed sitting range of movement of the cervical spine.
Dr Antoun concludes that the applicant’s current clinical findings are consistent with a lumbosacral musculoligamentous injury, minor left facet joint irritation with no radicular signs.
The applicant initially consulted Dr Wallace at Sydney West Pain Clinic on 19 August 2019. Dr Wallace records in a report of that same date that the applicant presented with low back pain and left rib pain, and left-sided pain from the ankle all way up the back and up into the arm. There is no reference to neck symptoms in that report.
There are another seven reports from Dr Wallace from between 22 January 2020 and
12 January 2022, but there is no mention in those reports of the applicant having neck pain or neck symptoms.
There is a report from Dr Yu, interventional pain specialist, dated 6 August 2020 which records the applicant having widespread body pain including left neck pain. Dr Yu records the applicant having left lower back pain since the work injury on 11 December 2018 and the pain “progressively extended upwards to the left neck”.
Dr Gothelf, orthopaedic surgeon, has provided reports dated 16 October 2020, 6 June 2022 and 26 November 2022 at the request of the lawyers for the applicant.
In his first report dated 16 October 2020, Dr Gothelf records that the applicant felt an immediate sharp pain in his lower back and in his neck on 10 December 2018 when the applicant took the brunt of the load of a glass panel when his colleague almost dropped the panel.
Dr Gothelf also records that in March 2020 the applicant was struck by a motor vehicle on his left side and the applicant’s “left side symptoms were exacerbated by the impact”.
Dr Gothelf found limited range of motion of the applicant’s neck and tenderness to palpation on the neck spinous processes.
Dr Gothelf diagnosed the applicant as having sustained a cervical neck strain as a result of the work injury on 10 December 2018. He found physical examination to be consistent with guarding and dysmetria.
Dr Gothelf again found limited range of motion of the applicant’s neck when he examined the applicant for his reports dated 6 June 2022 and 26 November 2022. He confirmed his diagnosis of a cervical neck strain as a result of the work injury on 10 December 2018 in those two reports.
Dr Moloney has provided reports dated 19 February 2020 and 2 August 2022 at the request of the respondent.
In his report dated 19 February 2020, Dr Moloney records that the applicant felt a “pop” in his back and some pain radiating to the left gluteal region in December 2018 when a sheet of glass which the applicant was carrying with a fellow worker began to wobble. Dr Moloney also records the applicant aggravating his back problem with an increase in back pain and left-sided gluteal pain on 28 February 2019 when the applicant was pushing a heavy trolley.
Dr Moloney concludes that the applicant sustained an injury to the L5/S1 disc in the form of an annular tear posteriorly and more prominent to the left side. Dr Moloney does not record in his report any injury to the neck sustained by the applicant in December 2018 or any ongoing problems with the applicant’s neck.
In his report dated 2 August 2022, Dr Moloney records that the applicant was struck by a reversing vehicle when he was wheeling his bicycle across a pedestrian crossing.
Dr Moloney records that the applicant sustained a problem with his neck when he dived out of the way from this reversing vehicle.
Dr Moloney writes: “When I endeavoured to pursue the matter of the neck injury he asked me what did his neck injury have to do with his back injury”.
Dr Moloney concludes that the neck problem seems to have come on after the motor accident and not the work injury, and he does not believe that the applicant has a neck injury as a result of the injuries at work.

A summary of submissions

Mr Collins for the applicant submits that the statement made by the applicant just three months after the injury on 10 December 2018 wherein the applicant states that he experienced sharp pain in his neck in the incident on 10 December 2018 and continues to suffer neck pain, and the findings of restriction of movement of the neck found by Dr Antoun in August 2019, and the records of ongoing neck pain by Dr Touma in the latter part of 2019, provide sufficient evidence for a finding to be made that the applicant sustained at least a strain of the cervical spine in the incident on 10 December 2018.
Mr Collins submits that an inference can be drawn from the entry made by Dr Touma on
30 July 2019 of “ongoing neck pain” that the applicant had been suffering the effects of an injury to the neck for some time.
Mr Rickard for the respondent refers to there being no reference to an injury to the neck or neck symptoms when the applicant attends Dr Touma on the day after the incident on
10 December 2018, and that there is no reference in Dr Touma’s records to problems with the neck for another seven months despite many attendances by the applicant upon
Dr Touma over this period of time.
Mr Rickard submits that even the few references to neck pain in Dr Touma’s notes between July 2019 and the motor accident in March 2020 contain no attribution to the work injury in December 2018.
Mr Rickard submits that the overwhelming evidence is in favour of a finding that the applicant only sustaining an injury to his lower back on 10 December 2018.
Mr Rickard submits that there has been no challenge made by the applicant to the record made by Dr Moloney that the applicant’s problems with his neck commenced after the motor accident which he was involved in.

Determination

The meaning of ‘personal injury’ in s 4 of the 1987 Act was considered by Roche DP in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), where he observed:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is ‘a sudden identifiable pathological change’.”
In the decision of Felstead Roche DP had said at [81]:
“It follows that the description of a personal injury as ‘a sudden identifiable pathological change’ is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain”.
The respondent has not provided any evidence to challenge the description given by the applicant in his statements and to various doctors of how he sustained a personal injury on 10 December 2018. I accept that having to take the weight of glass panel weighing about 100kg when a co-worker started to drop the panel was capable of also causing an injury to the cervical spine.
However, the difficulty facing the applicant is the lack of contemporaneous evidence supporting a finding that he did sustain an injury to his cervical spine during that incident on 10 December 2018.
The details recorded by Dr Touma on the day after the incident only refer to an injury to the lower back and some pain going up to the mid-back on the left side. There are some 15 entries made by Dr Touma between 10 December 2018 and 29 March 2019 which record ongoing back pain, but there is no reference to any pain or symptoms in or from the neck in those 15 entries. There are also three entries made by Mr Rossi, physiotherapist, over the same period which do not include any reference to treatment of the neck.
The Certificates of Capacity issued by Dr Touma during the course of 2020 only refer to an injury to the lower back and not to the neck.
Dr Antoun does not record any injury to the applicant’s neck when he sees the applicant in August 2019.
Dr Wallace does not record the applicant sustaining an injury to his neck or having any symptoms in or emanating from the neck when she sees the applicant in August 2019.
Dr Moloney does not record the applicant sustaining an injury to his neck in December 2018 when he sees the applicant for the first of two examinations in February 2020.
However, the applicant provides a signed statement on 28 March 2019, which is just over three months after the incident on 10 December 2018, wherein he states not merely that he sustained an injury to his neck in that incident, but he also describes how he experienced a sharp pain in his neck when he took the heavy weight of the glass panel and that he was continuing to experience pain in his neck at the time that he provided this statement.
There is no additional material in this dispute which indicates how or why this signed statement came into existence some three and a half months after the incident. It would appear to have been produced to support a workers compensation claim after the subsequent incident involving the heavy trolley on 14 February 2019 and the applicant being stood down by the respondent from any further work. The respondent or its insurer has not raised any issue regarding the weight which should be given to this particular piece of evidence or questioned the authenticity of the document.
There is therefore no reason why I should not accept a statement made by the applicant at a time quite close to the subject incident as being accurate, genuine and authentic.
Nonetheless, simply stating that there was an onset of sharp pain in the neck when taking the heavy load of the glass panel does not of and in itself establish that the applicant sustained an ascertainable or identifiable physiological change in his cervical spine which satisfies the definition of ‘personal injury’ in Kear and Felstead when the contemporaneous medical records do not contain any details of symptoms in the applicant’s neck for many months following the subject incident.
The clinical notes of Dr Touma in the weeks and months after the incident in
December 2018, and the Certificates of Capacity issued by Dr Touma during 2020, do not assist the applicant on this issue.
However, Dr Antoun does find restriction of movement in the applicant’s cervical spine and records that the applicant complained of discomfort on palpation of the left cervical muscles when the applicant is examined in August 2019. Mr Rickard refers to Dr Antoun recording inconsistency in the applicant’s presentation, and Dr Antoun writes that he expressed his concern regarding inconsistencies in presentation when he had the opportunity to speak to Dr Touma. However, Dr Antoun does not dismiss the findings which he makes on examination of the applicant.
I agree with the submission made by Mr Collins that the findings made by Dr Antoun on examination of the applicant are consistent with the applicant having sustained some injury to the cervical spine. I also agree with another submission made by Mr Collins that the lack of any reference to the applicant having problems with his neck prior to the incident in December 2018 adds to a conclusion that it is likely that the restrictions and complaints of the neck which are recorded by Dr Antoun result from that work injury.

There remains the lack of any reference to problems with the applicant’s neck in the clinical notes from Dr Touma up until 30 July 2019, and then only a few references to neck pain before the motor accident in March 2020. However, it has often been observed that caution must be observed when clinical notes are approached. In Nominal Defendant v Clancy [2007] NSWCA (Clancy) Santow JA (with Campbell JA agreeing) said at [55]:
“… clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document”.
A review of the clinical notes from Dr Touma reveals that the applicant had considerable difficulty in dealing with ongoing pain in the lower back. The applicant ultimately underwent surgery to the lower back in May 2021 after seeking the opinion from two neurosurgeons and undergoing extensive periods of physiotherapy.
It is therefore reasonable to conclude, and to agree with a submission made by Mr Collins, that treatment was concentrated on the applicant’s lower back within the first few months of the injury on 10 December 2018. However, the lack of any reference to problems with the applicant’s neck in those first few months does not mean that the applicant could not have also sustained an injury to his neck on 10 December 2018.
The applicant made a statement within four months of the incident on 10 December 2018 of how he sustained an injury to his neck and what he experienced at the time. There are records made by Dr Antoun and Dr Touma of neck pain, albeit several months after the incident. That evidence allows me to be satisfied that the applicant did sustain at least a strain of the cervical spine, which is the diagnosis made by Dr Gothelf.
It is understandable that based upon the details provided to Dr Moloney that he would conclude that the applicant’s neck problems seemed to have come on after the motor accident and that he does not believe that the applicant has a neck injury as a result of the injuries at work.
However, I have set out the evidence which I consider allows me to have a sense of persuasion that the applicant did sustain an injury to his neck on 10 December 2018.
The clinical notes from Dr Touma record many references to neck pain after the motor accident in March 2020. This is despite a submission made by Mr Collins that the effects of the motor accident were trivial. It may be that the effects of the motor accident form a substantial proportion of any whole person impairment of the cervical spine if such impairment is found by a Medical Assessor.
However, my task is to determine if the applicant sustained a personal injury to his cervical spine in the course of his employment on 10 December 2018 and I am satisfied from my review of the evidence that this did occur.
There will be a finding that the applicant sustained an injury to his cervical spine in the course of his employment with the respondent on 10 December 2018 and a referral to a Medical Assessor for an assessment of whole person impairment of the lumbar spine and cervical spine as a result of that injury.

[2023] NSWPIC 500

26 September 2023